Majority
p. 865Joseph A. Graff, Plaintiff, v. Bernwitt Corporation and Another, Defendants.[1] Supreme Court, Kings County, April 21, 1930.
Harold Glatzer, for the defendant Bernwitt Corporation.
Charles H. O’Connor, for the defendant Great Atlantic and Pacific Tea Company.
The plaintiff secured the restrictive covenant for the purpose of obtaining freedom from competition in the row of
p. 866
which his store is a part. And whether the violation of the restriction be denominated incidental to the principal business being conducted as defendants maintain or otherwise, it cannot be sustained as excusatory. Upon a motion of this character, the court concerns itself merely with the proposition whether there is a restrictive covenant binding upon the defendant, whether such covenant is being violated, and whether because of such violation the plaintiff is sustaining such pecuniary loss as to entitle him, in the exercise of equitable discretion, to the injunctive relief sought: The Great Atlantic and Pacific Tea Company, defendant herein, is a large organization engaged in the sale of a great number of varied commodities; the plaintiff is an individual tradesman, dealing in merely the articles for which he sought protection by way of the restrictive lease. A continuance of competition pendente lite might entail serious consequences to the plaintiff prior to final adjudication. The equity of the situation as hére disclosed shapes the proper determination.
Motion granted. Settle order on notice.